McCullen v. Ives, No. 3:2017cv01260 - Document 23 (D. Or. 2018)

Court Description: Opinion and Order: For reasons stated on the record at oral argument, I decline to adopt Judge Jelderks's F&R. I further GRANT the Petition for Writ of Habeas Corpus 1 . The judgment in petitioner's criminal proceeding, 6:10-cr-60136-AA, is VACATED. Resentencing shall be scheduled. Signed on 5/10/2018 by Judge Michael W. Mosman. (kms)

Download PDF
McCullen v. Ives Doc. 23 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION ROBERT LINN MCCULLEN, No. 3:17-cv-1260-JE Plaintiff, OPINION AND ORDER v. RICHARD IVES, Warden, Defendant. MOSMAN,J., On February 26, 2018, Magistrate Judge John Jelderks issued his Findings and Recommendation (F&R) [18], recommending that the Petition for Writ of Habeas Corpus [1] should be denied and a judgment should be entered dismissing this case with prejudice, but that the Court should allow a Certificate of Appealability as to all argued issues in this case. Petitioner objected. [20]. I held oral argument on May 7, 2018. DISCUSSION The magistrate judge makes only recommendations to the court, to which any party may file written objections. The court is not bound by the recommendations of the magistrate judge, but retains responsibility for making the final determination. The court is generally required to make a de novo determination regarding those portions of the report or specified findings or 1 - OPINION AND ORDER Dockets.Justia.com recommendation as to which an objection is made. 28 U.S.C. § 636(b)(l)(C). However, the court is not required to review, de novo or under any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the F&R to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny under which I am required to review the F&R depends on whether or not objections have been filed, in either case, I am free to accept, reject, or modify any part of the F&R. 28 U.S.C. § 636(b)(l)(C). For reasons stated on the record at oral argument, I decline to adopt Judge Jelderks's F&R. I further GRANT the Petition for Writ of Habeas Corpus [1]. The judgment in petitioner's criminal proceeding, 6: 10-cr-60136-AA, is VACATED. Resentencing shall be scheduled. IT IS SO ORDERED. DATED this day of May, 2018. 2 - OPINION AND ORDER

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.